Octaviano Urias-Sepulveda v. Pamela Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 26, 2026
• Docket: 20-73617
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 26 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OCTAVIANO URIAS-SEPULVEDA, No. 20-73617

Petitioner, Agency No. A209-138-822 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 5, 2026 Phoenix, Arizona

Before: BERZON, CALLAHAN, and FRIEDLAND, Circuit Judges.

Octaviano Urias-Sepulveda, a native and citizen of Mexico, petitions for

review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to

reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We

review the denial of a motion to reopen for abuse of discretion. Valeriano v.

Gonzales, 474 F.3d 669, 672 (9th Cir. 2007). “The BIA abuses its discretion when

it acts arbitrarily, irrationally, or contrary to the law, and when it fails to provide a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasoned explanation for its actions.” Tadevosyan v. Holder, 743 F.3d 1250, 1252–

53 (9th Cir. 2014) (citation modified). We deny the petition.

The BIA previously affirmed the decision of an Immigration Judge (“IJ”)

denying Urias-Sepulveda’s application for cancellation of removal. The Board held

that Urias-Sepulveda had not shown his removal to Mexico would result in

exceptional and extremely unusual hardship to his United States citizen children.

Urias-Sepulveda sought to reopen his case on the ground of ineffective assistance

of counsel.

To show ineffective assistance of counsel “the petitioner must demonstrate

first that counsel failed to perform with sufficient competence, and, second, that

[he] was prejudiced by counsel’s performance.” Mohammed v. Gonzales, 400 F.3d

785, 793 (9th Cir. 2005). To show prejudice, the petitioner must show that his

counsel’s inadequate performance “may have affected the outcome of the

proceedings.” Id. at 793–94 (citation modified). The BIA denied Urias-

Sepulveda’s motion to reopen because he failed to show prejudice.

1. Urias-Sepulveda argues that he was prejudiced by his attorney’s deficient

performance because he was deprived of an opportunity to present evidence of his

daughter’s academic achievements and lack of educational opportunities in

Mexico. But the only evidence Urias-Sepulveda submitted with his motion to

reopen related to those topics was his declaration stating that his daughter had

2 “received many awards from her school, including a Presidential Award.” His

daughter’s presidential award was submitted with Urias-Sepulveda’s application

for cancellation of removal. Urias-Sepulveda’s vague statement about her “many

awards” did not add any information of substance, so it was not sufficient to

constitute new evidence. The BIA held that without additional evidence, it was

“not persuaded that [Urias-Sepulveda] ha[d] presented plausible grounds for

finding that his removal would result in exceptional and extremely unusual

hardship to a qualifying relative.” The BIA did not abuse its discretion because

“[f]ailure to allege new facts supported by evidentiary material is an adequate

ground for denial of a motion to reopen.” Patel v. INS, 741 F.2d 1134, 1137 (9th

Cir. 1984) (citation modified); see 8 CFR § 1003.23(b)(3) (“A motion to reopen

proceedings . . . shall be supported by affidavits and other evidentiary material.”).

2. Urias-Sepulveda argues that he was prejudiced because his attorney’s

deficient performance prevented him from filing a timely petition for review in this

court of the BIA’s cancellation of removal decision. The BIA recognized that

“[p]rejudice is presumed when an attorney’s ineffective assistance of counsel

prevents the alien from filing a timely appeal in immigration proceedings.” See

Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045–46 (9th Cir. 2000). But,

the Board explained, the presumption of prejudice “is rebutted if the alien cannot

show that he had plausible grounds for relief.” See Rojas-Garcia v. Ashcroft, 339

3 F.3d 814, 826 (9th Cir. 2003). The Board held that Urias-Sepulveda did not show

he had plausible grounds for relief because the only issue on appeal was the

hardship determination and this court did not have jurisdiction to review that

determination.

At the time of the BIA’s decision affirming the denial of Urias-Sepulveda’s

application for cancellation of removal, our court had held that we did not have

jurisdiction to review the BIA’s exceptional and extremely unusual hardship

determination. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003).

In the interim period, however, the Supreme Court held that the circuit courts do

have jurisdiction. Wilkinson v. Garland, 601 U.S. 209, 225 (2024).

The BIA did not abuse its discretion by holding that it was not plausible that,

had Urias-Sepulveda been able to file a timely petition for review, four years

before Wilkinson was decided, our court would have held we had jurisdiction to

grant that petition. Such a holding would have been contrary to the controlling law

of our circuit at that time. Cf. United States v. Cisneros-Resendiz, 656 F.3d 1015,

1021–22 (9th Cir. 2011) (rejecting as “speculative” a noncitizen’s argument that he

had plausible grounds for relief because “immigration laws are in a near constant

state of flux” so “he might have qualified for a family-based immigration option at

some point in the future” even though he did not have that option at the time

(quotation marks omitted)).

4 Nor is it plausible that our court would have granted Urias-Sepulveda’s

petition on the merits if we did have jurisdiction. Our court reviews the BIA’s

hardship determination for abuse of discretion. Wilkinson, 601 U.S. at 225. The

BIA did not abuse its discretion in holding that Urias-Sepulveda did not show

exceptional and extremely unusual hardship. Although Urias-Sepulveda argues that

the IJ and BIA failed to consider all the relevant factors to the hardship

determination, including economic and emotional hardship for his children, the IJ,

whose reasoning the BIA adopted, expressly considered those factors.

Further, the Board’s hardship determination is supported by the record.

Cancellation of removal is reserved for hardship that “deviate[s], in the extreme,

from the norm.” Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1006 (9th Cir. 2025).

Given that Urias-Sepulveda’s children are all healthy and doing well, and that they

have additional family members, including their mother, in the United States,

which is where they will stay if Urias-Sepulveda is removed, the hardship that

Urias-Sepulveda’s children face is “that which would normally be expected.”

Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001).

PETITION FOR REVIEW DENIED.